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Schneiderman: My Office Will Fight Every Day To Defend The Fundamental Guarantee Of Equal Protection For All New Yorkers

WASHINGTON – Attorney General Eric T. Schneiderman today announced that he is leading a coalition of more than a dozen states in filing a friend-of-the-court brief urging the U.S. Supreme Court to strike down the federal Defense of Marriage Act (DOMA), which refuses to recognize for all federal purposes same-sex marriages valid under state law. The brief, which will be filed in the case of United States v. Windsor on Friday, argues that DOMA violates same-sex couples’ right to equal protection under the law as required by the U.S. Constitution and represents an unprecedented intrusion on the authority of States to regulate marriage and promote equality for their citizens.

Attorney General Schneiderman will file the brief together with Massachusetts Attorney General Martha Coakley, joined by more than a dozen other States, including California, Connecticut, Delaware, Iowa, Illinois, Maine, Maryland, New Hampshire, New Mexico, Oregon, Rhode Island, Vermont, Washington and the District of Columbia. Six of these states do not presently offer same-sex marriage but agree that DOMA’s disregard for state law and unequal treatment of validly married couples violate the Constitution.

“The federal Defense of Marriage Act clearly violates the principle of equal justice under law as enshrined in the U.S. Constitution, and improperly intrudes on the traditional role of states in regulating marriage and promoting equality. We urge the Supreme Court to overturn this discriminatory law,” said Attorney General Schneiderman. “The State of New York has long recognized out-of-state same-sex marriages, and the enactment of the Marriage Equality Act further cemented our State’s position on this critical civil rights issue. My office will fight every day to defend the fundamental guarantee of equal protection under law for all New Yorkers.”

The case was brought by New York resident Edie Windsor, who was married in Canada in 2007 to her partner, Thea Spyer, who died two years later. Following Spyer’s death, the federal government, under DOMA, ignored the couple's marriage, and denied Windsor the estate tax exemption available to surviving spouses. Windsor filed a lawsuit challenging the constitutionality of DOMA and seeking a refund of the estate taxes she was forced to pay as a result of the federal government’s refusal to recognize her marriage.

A federal district court in New York held that DOMA was unconstitutional because it serves no legitimate government interest, and the Court of Appeals for the Second Circuit affirmed that ruling. The Second Circuit held that DOMA is subject to intermediate scrutiny because it discriminates based on sexual orientation, and that Congress could not justify DOMA with a sufficiently strong federal interest to pass constitutional muster. The Second Circuit adopted New York’s argument that DOMA’s intrusion into the realm of state regulation was cause “to look upon Section 3 of DOMA with a cold eye.”

In the States’ brief, Attorney General Schneiderman argues that in rejecting same-sex marriages, Section 3 of DOMA violates the equal protection component of the Fifth Amendment’s Due Process Clause, and must therefore be invalidated. He argues that the statute improperly intrudes on the traditional role of states in regulating marriage and domestic relations generally; that it consequently must be subjected to skeptical scrutiny; and that it fails any level of scrutiny because it does not rationally advance any legitimate federal interest.

In a separate case affecting the marriage rights of same sex couples, Hollingsworth v. Perry, Attorney General Schneiderman joined a friend-of-the-court brief filed by Massachusetts today, and joined by 12 otherStates, urging the Supreme Court to hold that California’s ban on gay marriage is unconstitutional. California banned same-sex marriage in a ballot proposition, known as Proposition 8, that amended the state constitution to say that“only marriage between a man and a woman is valid or recognized in California.” In that case, a federal district court in California ruled that Proposition 8 violated both the Due Process and Equal Protection Clauses of the United States Constitution, and the U.S. Court of Appeals for the Ninth Circuit affirmed that ruling.

New York Senator Kirsten Gillibrand, an original co-sponsor of the Respect for Marriage Act in the Senate and a leading champion of “Don’t Ask Don’t Tell” repeal: “I commend Attorney General Schneiderman for fighting to ensure equal treatment under law for all families. This brief marks a unified step forward in urging the Supreme Court to rule DOMA as unconstitutional. Regardless of the Court’s ultimate decision, Congress will need to do its job too. It is well past time for the federal government to recognize the marriages of all loving and committed couples and finally put the discriminatory DOMA policy into the dustbin of history.”

Congressman Jerry Nadler (D-NY):“As the author and lead sponsor of the House bill to repeal DOMA, I applaud Attorney General Schneiderman for his bold action on behalf of the people of New York, whose right to marry is not recognized by the federal government. Through DOMA, the federal government is actively discriminating against legally married same-sex couples, and it is right for the state to come to their defense by seeking to strike down that law in court. I wholeheartedly support Attorney General Schneiderman’s swift action challenging this unconstitutional and indefensible policy.”

New York City Council Speaker Christine Quinn:“Edie Windsor’s fight to have her marriage recognized by the federal government is a stark reminder of how far we still have to go to attain full equality for all people. The Defense of Marriage Act is an assault against our civil liberties, and I applaud Attorney General Schneiderman for defending the rights of all New Yorkers.”

Chad Griffin, President of the Human Rights Campaign: “We applaud Attorney General Eric Schneiderman's leadership in this important moment as we look to the Supreme Court to strike down the unconstitutional Defense of Marriage Act. Attorney General Schneiderman has long articulated that this federal law violates the constitutional guarantee of equal protection under law. We wholeheartedly agree, and are optimistic the United States Supreme Court will as well."

Evan Wolfson, Founder and President of Freedom to Marry: “Today Attorney General Schneiderman is leading a coalition of states in standing up for those who are denied the freedom to marry and the protections and responsibilities marriage brings under federal law. By continuing to enforce DOMA, the federal government is actively discriminating against legally married same-sex couples, and trampling on the traditional domain of states like New York that have recognized marriage equality. I commend Attorney General Schneiderman for his leadership in challenging this unjust law.”

The Supreme Court will hear argument in both the DOMA and Proposition 8 cases during the last week of March.

The brief in the case of United States v. Windsor was prepared by New York Solicitor General Barbara D. Underwood, Deputy Solicitor General Cecelia C. Chang, and Assistant Solicitors General Andrew W. Amend and Mark H. Shawhan, as well as Massachusetts Assistant Attorneys General Maura T. Healey, Jonathan B. Miller, and Joshua D. Jacobson.